Citation Nr: 0801795
Decision Date: 01/16/08 Archive Date: 01/29/08
DOCKET NO. 06-35 961 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a right foot
disability.
2. Entitlement to service connection for right ear hearing
loss.
WITNESSES AT HEARING ON APPEAL
Veteran and Spouse
ATTORNEY FOR THE BOARD
M. N. Hyland, Counsel
INTRODUCTION
The veteran had active duty from August 1980 to April 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2006 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The veteran and her spouse testified via
videoconference at a Board hearing in November 2007.
At the hearing, the veteran raised the issues of entitlement
to service connection for tinnitus and a low back disability.
By way of correspondence dated in November 2007, the veteran
clarified that she did not wish to file a claim for
entitlement to service connection for a low back disability.
Therefore, the Board will refer only the matter of tinnitus
to the RO for appropriate action.
The issue of entitlement to service connection for a right
foot disability is addressed in the REMAND portion of the
decision below and REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDING OF FACT
The veteran does not have a current right ear hearing loss
disability.
CONCLUSION OF LAW
A right ear hearing loss disability was not incurred or
aggravated during the veteran's active duty service.
38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
Upon receipt of a complete or substantially complete
application for benefits, VA is required to advise a claimant
of the information and evidence not of record that is
necessary to substantiate the claim. See 38 U.S.C.A. § 5103
(West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that
notice, VA must inform the claimant of the information and
evidence he is expected to provide, as well as the
information and evidence VA will seek to obtain on his
behalf. In addition, VA must advise a claimant to provide any
additional evidence in his possession that pertains to the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002).
The requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability,
a connection between the veteran's service and the
disability, degree of disability, and effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id; see also
Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA
may proceed with adjudication of a claim if errors in the
timing or content of the VCAA notice are not prejudicial to
the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005);
Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22,
2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v.
Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
In this case, in an April 2006 letter, the RO provided timely
notice to the veteran regarding what information and evidence
is needed to substantiate service connection claims and the
evidence necessary to establish disability ratings and
effective dates in the event that entitlement to service
connection was established, as well as specifying what
information and evidence must be submitted by her, what
information and evidence will be obtained by VA, and the need
for her to advise VA of or submit any further evidence that
pertains to her claims.
The RO has taken appropriate action to comply with the duty
to assist the veteran with the development of her claim. The
record includes service records, VA treatment records, and an
August 2006 VA audiological consultation report which shows
the veteran does not have a current hearing loss disability.
As such, the Board finds that the record as it stands
includes sufficient competent evidence to decide these
claims. See 38 C.F.R. § 3.159(c)(4). Under these
circumstances, the Board finds no further action is necessary
to assist the veteran with the claims.
In sum, the record reflects that the facts pertinent to the
claims have been properly developed and that no further
development is required to comply with the provisions of the
VCAA or the implementing regulations. That is to say,
"the record has been fully developed," and it is "difficult
to discern what additional guidance VA could [provide] to the
veteran regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F. 3d. 1369
(Fed. Cir. 2004). Accordingly, the Board will adjudicate the
claims.
Analysis
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury
or disease occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Certain chronic disabilities, such as organic diseases of the
nervous system, are presumed to have been incurred in service
if manifest to a compensable degree within one year of
discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R.
§§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under
Secretary for Health determined that it was appropriate to
consider high frequency sensorineural hearing loss an organic
disease of the nervous system and therefore a presumptive
disability. For the purposes of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. 38
C.F.R. § 3.385.
The lack of any evidence that the veteran exhibited hearing
loss during service is not fatal to her claim. The laws and
regulations do not require inservice complaints of or
treatment for hearing loss in order to establish service
connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89
(1992). Instead, as noted by the United States Court of
Appeals for Veterans Claims (Court):
[W]here the regulatory threshold
requirements for hearing disability are
not met until several years after
separation from service, the record must
include evidence of exposure to disease
or injury in service that would adversely
affect the auditory system and post-
service test results meeting the criteria
of 38 C.F.R. § 3.385....For example, if
the record shows (a) acoustic trauma due
to significant noise exposure in service
and audiometric test results reflecting
an upward shift in tested thresholds in
service, though still not meeting the
requirements for "disability" under 38
C.F.R. § 3.385, and (b) post-service
audiometric testing produces findings
meeting the requirements of 38 C.F.R. §
3.385, rating authorities must consider
whether there is a medically sound basis
to attribute the post-service findings to
the injury in service, or whether they
are more properly attributable to
intercurrent causes.
Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a
brief of the VA Secretary).
As a preliminary matter, it must be shows that the veteran
has a current right ear hearing loss disability. Service
connection cannot be established without a current
disability. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). The relevant medical evidence of record includes an
August 2006 audiological consultation which shows that the
veteran had hearing within normal limits in the right ear and
excellent word recognition scores in the right ear. The
examiner noted that she explained to the veteran that she has
essentially normal hearing in both ears.
As noted above, in order to constitute a hearing loss
disability for VA compensation purposes, auditory threshold
in at least one of the frequencies 500, 1000, 2000, 3000,
4000 Hertz must be 40 decibels or greater; or the auditory
thresholds for at least three of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz must be 26 decibels or greater; or
the speech recognition scores using the Maryland CNC Test
must be less than 94 percent. There is no evidence that the
veteran's auditory thresholds in any frequency is 40 decibels
or greater or that auditory thresholds for at least three
frequencies are 26 decibels or higher. Finally, the Board
notes that none of the medical evidence shows speech
recognition scores for the right ear of less than 94 percent.
As such, the Board finds that the medical evidence of record
preponderates against a finding that the veteran has a
current right ear hearing loss disability for VA compensation
purposes. Service connection cannot be established without a
current disability. Brammer, above. Therefore, entitlement to
service connection for a right ear hearing loss disability is
not warranted.
In making this determination, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b), but there is not such a
state of approximate balance of the positive evidence with
the negative evidence to otherwise warrant a favorable
decision.
ORDER
Entitlement to service connection for right ear hearing loss
is denied.
REMAND
At the November 2007 Board hearing, the veteran testified
that she received treatment for her foot condition at a
private facility. She alleged treatment from "Dr. Oakum"
and "Dr. Sutton." The Board finds that the RO should
request that the veteran sign the appropriate release forms
in order for the RO to attempt to get these records and
associate them with the claims file.
Additionally, an April 1981 service medical record reflects
that the veteran complained of foot pain. The veteran's
spouse submitted a May 2006 statement which stated that in
April 1981, she came by his barracks to report that she had
"stepped on a rock while walking downhill" and had foot
pain. The statement also said that he had witnessed her
continuing to have problems with her foot since that time.
The veteran testified at her November 2007 Board hearing that
she has experienced foot pain continuously since the 1981
incident in service. Current medical treatment records
reflect several podiatric complaints. In light of the
inservice foot complaint, the competent and credible
allegations of continuing foot pain, and the competent
evidence of current foot complaints, the Board finds that a
VA examination is necessary to determine if the current foot
problems are etiologically related to the veteran's active
duty service period. See McLendon v. Nicholson, 20 Vet.App.
79 (2006).
Accordingly, the case is REMANDED for the following action:
1. The RO should send the veteran the
appropriate release and authorization
forms to complete and sign in order to
authorize the RO to obtain relevant
medical records from any appropriate
private medical providers.
2. The RO should arrange for the veteran
to undergo a VA orthopedic examination. It
is imperative that the examiner have
access to the veteran's c-file for review
in connection with the examination. After
reviewing the veteran's c-file and
examining the veteran, the examiner should
identify all current foot disabilities, if
any. For each disability identified, the
examiner should opine as to whether or not
such disability is etiologically related
to the veteran's active duty service. If
the examiner cannot provide the requested
opinion without resorting to mere
speculation, he or she should so state.
3. After completion of the above, and any
additional development of the evidence
that the agency of original jurisdiction
may deem necessary, the RO should review
the record and readjudicate the claim. If
any benefits sought remain denied, the
veteran should be issued an appropriate
supplemental statement of the case, and
afforded the opportunity to respond. The
case should then be returned to the Board
for further appellate review, if otherwise
in order.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs